Citation Nr: 21064082 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-06 295 DATE: October 19, 2021 ORDER Entitlement to a rating higher than 10 percent for viral conjunctivitis with dry eye syndrome prior to December 23, 2020, is denied. Entitlement to a 20 percent rating, but not higher, for viral conjunctivitis with dry eye syndrome as of December 23, 2020, but not earlier, is granted, subject to regulations governing the payment of monetary awards. REMANDED Entitlement to a compensable rating for right fifth digit, partial flexor tendon rupture, is remanded. FINDINGS OF FACT 1. Prior to December 23, 2020, the Veteran's eye disability manifested with corrected distance vision of 20/40 or better bilaterally, active conjunctivitis, and dry eyes. 2. As of December 23, 2020, the average concentric contraction of the Veteran's visual field was, at worst, 51 degrees in the right eye and 49 degrees in the left eye, and corrected distance vision was 20/20 or better bilaterally. CONCLUSIONS OF LAW 1. Prior to December 23, 2020, the criteria for a rating higher than 10 percent for viral conjunctivitis with dry eye syndrome are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.75-4.79, Diagnostic Code 6066-6018. 2. As of December 23, 2020, the criteria for a 20 percent rating, but not higher, percent for viral conjunctivitis with dry eye syndrome are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.75-4.79, Diagnostic Code 6066-6018. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1992 to June 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. In September 2020, the Board remanded the case for further development. In January 2021, the Veteran submitted a VA Form 20-0995 (Decision Review Request: Supplemental Claim) requesting, in pertinent part, review in the Appeals Modernization Act (AMA) system for viral conjunctivitis and right fifth digit partial flexor tendon rupture. However, the VA Form 20-0995 was not a valid opt-in for the issue related to viral conjunctivitis as the January 2021 rating decision that granted a partial increase was a non-initial rating decision. 38 C.F.R. § 19.2. Additionally, the Agency of Original Jurisdiction did not accept his appeal of the issue of the right fifth digit partial flexor tendon rupture as he did not check the "OPT-IN from SOC/SSOC" box to indicate that he wanted to withdraw any issues from the Legacy system. As the Veteran did not validly opt-in to the AMA system, the Board will review his claims under the legacy system. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Eye Disabilities The Veteran is seeking a higher rating for the viral conjunctivitis. During the course of this appeal, a January 2021 rating decision awarded the Veteran an increased 10 percent rating for viral conjunctivitis, effective December 30, 2015. The Veteran's disability is rated as 10 percent disabling under Diagnostic Code 6066-6018, which rates visual impairment with chronic conjunctivitis (non-trachomatous). The Board notes the March 2016 VA examiner diagnosed bilateral dry eye syndrome and concluded the dry eyes were at least as likely as not caused by the conjunctivitis. As such, the Veteran's service-connected disability has been updated to include the dry eye syndrome. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Both the former and revised criteria distinguish active and inactive disease processes. Under the former criteria, an active disease process (with objective findings, such as red, thick conjunctivae, mucous secretion, etc.) is assigned a 10 percent rating. Under the revised criteria, an active disease process is rated pursuant to the General Rating Formula for Diseases of the Eye, with a minimum rating of 10 percent. For an inactive disease process, both the former and revised criteria instruct to evaluate based on residuals, such as visual impairment and disfigurement (Diagnostic Code 7800). Dry eye syndrome is rated under Diagnostic Code 6025, which pertains to disorders of the lacrimal apparatus (epiphora, dacryocystitis, etc.). Under Diagnostic Code 6025, a 20 percent rating is warranted for bilateral involvement and a 10 percent rating is warranted for unilateral involvement. There was no amendment to Diagnostic Code 6025. With regard to visual impairment, the May 2018 amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. The General Rating Formal for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or incapacitating episodes, whichever results in a higher evaluation. Where there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months, a 20 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. Where there are documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months, a 60 percent rating is warranted. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, Diagnostic Codes 6061-6091. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). Examinations of visual impairment must be conducted by a licensed optometrist or ophthalmologist, and the examiner must identify the disease, injury, or other pathologic process for any visual impairment found. Id. § 4.75(b). Examinations of visual field or muscle function will be conducted only when medically indicated. Id. Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. The rater will first locate the step that matches the visual acuity of the poorer eye. Within that step, the rater will then locate the subsection that matches the visual acuity of the better eye, which will produce the corresponding rating. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(c). Diagnostic Code 6066 provides ratings where vision in one eye (the poorer eye) is 10/200 or better. Under both the former and revised criteria for Diagnostic Code 6066, where the visual acuity in both eyes is 20/40, a 0 percent rating is warranted. The evaluation of the visual field is based on the remaining field of vision in each eye. Normal visual field extant at eight principal meridians is as follows: temporally is 85 degrees, down temporally is 85 degrees, down is 65 degrees, down nasally is 50 degrees, up nasally is 55 degrees, up is 45 degrees, and up temporally is 55 degrees. 38 C.F.R. § 4.76a, Table III. The extent of contraction of visual field in each eye is determined by recording the extent of the remaining visual fields in each of the eight 45-degree principal meridians. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in Table III. 38 C.F.R. § 4.77(a). The degrees lost are then added together to determine total degrees lost. The sum is divided by eight and represents the average contraction of the visual field. To determine the rating for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service-connected, separately rate the visual acuity and visual field defect, expressed as a level of visual acuity, and combine them under the provisions of § 4.25. 38 C.F.R. § 4.77(c). Under Diagnostic Code 6080, a 10 percent rating is warranted for bilateral or unilateral concentric contraction of the visual field with remaining field of 16 to 60 degrees; or the unilateral loss of the temporal half, nasal half, inferior half, or superior half of visual field. Alternatively, this equates to 20/50 vision in each affected eye. 1. Entitlement to a rating higher than 10 percent for viral conjunctivitis with dry eye syndrome prior to December 23, 2020 At the March 2016 VA examination, the Veteran reported bumps on his eyelid, which caused a gritty feeling when blinking. He treated the disability with continuous eyedrops. Corrected distance measured 20/40 or better bilaterally. There was no visual field defect. The examiner noted the bilateral nontrachomatous conjunctivitis was active, but did not cause a decrease in visual acuity or other visual impairment. There was no scarring or disfigurement or incapacitating episodes. The examiner diagnosed bilateral dry eye syndrome and concluded the dry eyes were at least as likely as not caused by the conjunctivitis. VA and private treatment records showed active conjunctivitis. The Veteran reported irritation and a gritty sensation after blinking. Prior to December 23, 2020, the Board finds a higher rating is not warranted. Under both former and revised criteria, a 10 percent rating is warranted for active disease process. The March 2016 VA examination and VA and private treatment records show active conjunctivitis, dry eyes, and continued irritation. However, the evidence does not show decreased visual acuity, visual field defect, or impairment of muscle function. Further, there is no indication that the Veteran has scarring or disfigurement or incapacitating episodes (based on the former or revised schedular criteria). Although the March 2016 VA examiner diagnosed bilateral dry eye syndrome, the examiner did not indicate a lacrimal apparatus disorder, and thus, a compensable rating is not warranted based on the dry eye symptomatology. Therefore, the Board finds that the evidence does not demonstrate that the service-connected disability meets or more nearly approximates the criteria for a higher rating under Diagnostic Code 6018, 6025, or any other potentially applicable diagnostic code. The 10 percent rating for viral conjunctivitis with dry eye syndrome, prior to December 23, 2020, under Diagnostic Code 6066-6018 is appropriate. Accordingly, the Board finds that the preponderance of the evidence is against a finding that a rating higher than 10 percent is warranted. Therefore, the claim for an increased rating must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a 20 percent rating for viral conjunctivitis with dry eye syndrome as of December 23, 2020 At the December 23, 2020 VA examination, the Veteran reported that his eyes felt dry, sandy, gritty, and itchy. His vision was filmy. While the symptoms would come and go, they were very bothersome. Uncorrected distance vision was 20/40 bilaterally, while corrected distance vision measured 20/20 or better bilaterally. Although the Veteran did not have a documented visual field defect, Goldmann perimetry testing showed decreased visual fields with the average concentric contraction of the visual field with 51 degrees remaining in the right eye and 49 degrees in the left eye. The examiner noted the bilateral active chronic conjunctivitis caused a decrease in visual acuity or other visual impairment. In the remarks section, the examiner explained the viral conjunctivitis was more often acute with limited episodic duration, whereas chronic allergic conjunctivitis was more chronic in nature and perpetual with constant medication to alleviate symptomatology. There was no scarring or disfigurement or incapacitating episodes. As of December 23, 2020, the Board finds a 20 percent rating, but not higher, is warranted. The evidence shows continued active conjunctivitis and the December 2020 VA examination showed decreased visual fields. Under Diagnostic Code 6018, a minimum 10 percent rating is warranted for an active disease process. There was an average concentric contraction of the visual field with 51 degrees remaining in the right eye and 49 degrees in the left eye. Applying these results to Diagnostic Code 6080, the remaining visual field of 51 degrees for the right eye and the remaining visual field of 49 degrees for the left eye warrants a 10 percent rating based on bilateral remaining fields between 46 to 60 degrees. Alternatively, bilateral remaining fields between 46 to 60 degrees equates to a visual acuity of 20/50 for each eye. Under Diagnostic Code 6066, this alternative also equates to a 10 percent rating. Therefore, the Veteran is entitled to an increased 20 percent rating, based on the minimum 10 percent evaluation for active conjunctivitis and a 10 percent rating for visual impairment from a visual field loss. Significantly, the bilateral eye disability has not been shown to manifest in further decreased visual acuity, scarring or disfigurement, or result in incapacitating episodes (based on the former or revised schedular criteria). Therefore, the Board finds that the evidence does not demonstrate manifestations of service-connected disability that meet or more nearly approximate the criteria for a higher rating under Diagnostic Code 6018, 6025, or any other potentially applicable diagnostic code. Accordingly, the Board finds that a 20 percent rating, but not higher, for the bilateral eye disability as of December 23, 2020, but not earlier, is warranted. REASONS FOR REMAND 1. Entitlement to a compensable rating for right fifth digit, partial flexor tendon rupture, is remanded. A review of the record indicates additional testing is required. The December 2020 VA examiner noted the right fifth finger was not functional for use. Further, it was recommended that an additional assessment was needed due to the Veteran's severe and radiating pain. Specifically, the examiner recommended that an MRI be obtained. As additional testing is required, the Board finds it necessary to remand this matter to provide the Veteran an opportunity to receive another VA examination with any additional testing required be performed. Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2021 to the present. 2. Schedule the Veteran for a VA hand and finger examination to determine the current severity of the Veteran's service-connected right finger disability. The examiner must review the claims file and should note that review in the report. Any and all studies or tests deemed necessary should be performed, to specifically include an MRI. The examiner should describe the nature and severity of all manifestations of the Veteran's finger disability. The examiner should elicit information about the nature of the finger disability and all symptoms or manifestations of the disability when present, even if not present at the time of the examination. The examiner should also comment on the functional impairment resulting from the Veteran's finger disability. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kass, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.